A jury in Florida has awarded punitive damages of $23 billion against cigarette manufacturer RJ Reynolds, the makers of Camel cigarettes, following a case brought by the widow of man who died in 1996, aged 36, from lung cancer. No doubt there are many celebrating the jury’s decision in sticking one to the evil tobacco industry. But even if the astonishing penalty is overturned, as it may well be on appeal, the case is worrying for three reasons.
Firstly, awarding damages to people who know the risk of smoking but carry on regardless undermines the notion of personal responsibility. Health warnings were introduced on cigarette packs in the US in 1966. The wording was strengthened in 1969 to ‘The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health’. There is no ambiguity. No one alive in the past 40 years or more can have been in any doubt that smoking is dangerous and increases the risk of disease. To take up or carry on smoking after reading that clear warning is a risk taken by an individual, a balancing of potential pain versus pleasure. That warning was in place on cigarette packets before Michael Johnson Senior, the subject of the case, was even born. Yet, in addition to the punitive damages, the jury also awarded Johnson’s widow $7.3million and the couple’s son $9.6million in compensatory damages. Is it right that damages can be awarded even when the risks of a particular activity have been made clear? Should the courts provide a get-out clause for our own bad decisions, placing the cost of them on to others?
Secondly, the case hung on the notion that Johnson was incapable of giving up because he was addicted. The lawyer acting for Johnson’s widow told the media: ‘He couldn’t quit. He was smoking the day he died.’ Yet it is also clear that millions of people give up each year. Smoking rates have been in long-term decline across the Western world. Clearly, even if nicotine products are habit-forming, it is perfectly possible – if sometimes hard work – to stop using them. But one mention of the word ‘addiction’ and all sense of people as thinking beings is thrown out of the window. Instead, we are assumed to be in thrall to inanimate objects. That’s a depressing view of humanity, but one that is now being applied to all sorts of other products and behaviours, from sugar to sex.
Thirdly, the scale of the damages – even if sharply reduced in the appeal courts – is simply out of all proportion to the wrong that has been done. Like smoking, such awards have unpleasant side effects. This is particularly true in medicine, where doctors are driven to behave in a defensive manner toward patients, performing unnecessary and costly tests and procedures, for fear of being accused of being negligent later on. The overall cost of this compensation culture is writ large in the burgeoning cost of healthcare.
Mr Johnson’s death at such a young age is tragic and one can only have sympathy for his family. But such lawsuits are having a damaging effect on the whole of society. Whatever one thinks of big tobacco companies, the verdict in this case should not be cause for celebration.